Thursday, March 22, 2007

Weinstein on Ethics in Mass Torts

In connection with a seminar I'm teaching this week at Vanderbilt Law School on ethics in multiparty litigation, I recently reread Jack Weinstein's classic article, Ethical Dilemmas in Mass Tort Litigation, 88 Nw. U. L. Rev. 469 (1994).  It's fascinating to look back at that paper in light of decisions Judge Weinstein has rendered in the years since, such as his tobacco class certifications in Schwab and Simon II, his rejection of a challenge to the Agent Orange settlement in Stephenson, and his settlement approval and fee reduction in Zyprexa.

In 1994, Weinstein already was writing about the "quasi-class action" idea he would revisit in Zyprexa:  "It is my conclusion ... that mass consolidations are in effect quasi-class actions.  Obligations to claimants, defendants, and the public remain much the same whether the cases are gathered together by bankruptcy proceedings, class actions, or national or local consolidations."  (88 Nw. U. L. Rev. at 481)  And:  "In my view, consolidations should be treated for some purposes as class actions to assure judicial review of fees and settlements."  (Id. at 528)  He also wrote, naturally, about the need for flexibility when handling mass litigation and the importance of being realistic rather than blindly adherent to norms that were developed in a different framework.

It's impressive to see the extent to which Weinstein recognized in detail the ethical issues that continue to haunt mass tort practitioners.  I've generally thought of Weinstein more as a proceduralist than an ethicist, but in this article, he was right on the money in recognizing the ways in which mass litigation alters the attorney-client relationship, and the implications of that shift for attorneys' duties of loyalty, competence, diligence, and communication.

On many of the details, I'm less flexible than Weinstein, less willing to depart from traditional norms of loyalty to client objectives, particularly in the non-class action context.   But at a higher level of generality, I can't disagree with his basic point:

These monstrous mega-mass tort litigations can be tamed.  They must be examined with a realistic eye, rather than romantic notions of how the law and lawyers once operated when a tort involved only a private matter of two parties, two lawyers, and a passive court.  Ethical and legal norms out of touch with real life lead not to morality but to hypocrisy, abuse, and waste.  (Id. at 568)

In creating the syllabus for the seminar, I chose to include Weinstein's article as the first reading.  Not as a historical artifact, not as an example of how people thought about these problems pre-Amchem, pre-Castano, pre-fen-phen, pre-Vioxx, but rather as a solid, thought-provoking introduction to the ethical problems mass litigators face in 2007.  I just hope someone can say something similar about any of my papers 13 years after they're published.

HME

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